Cardiac patient awarded $5 million

Local jury finds practice committed fraud in steering him to surgeon

December 22, 2005|By TRICIA BISHOP | TRICIA BISHOP,SUN REPORTER

In a civil case that highlights growing competition in the health care industry, a Baltimore County jury has levied a $5 million judgment against Midatlantic Cardiovascular Associates, the area's largest cardiology practice, finding that two of its doctors committed fraud when they steered a patient to a surgeon employed by the practice rather than his own surgeon, who belongs to a rival group.

In its verdict, the jury found that Dr. Mark G. Midei, a cardiologist who is also the director of the cardiac catheterization laboratory at St. Joseph Medical Center in Towson, and Dr. Jeffrey E. Sell, a cardiac surgeon, had deliberately misled a patient to believe his heart surgeon was not available to perform a bypass operation.

The jury also found that Sell committed battery because he never had the right to operate on the plaintiff, Harry R. Bargar. The panel cleared both of malpractice.

FOR THE RECORD - Cardiac Surgery Associates was started by former Johns Hopkins doctors but there is no longer an association between the surgical practice and Hopkins. An article in Thursday's business section was not clear on the latter point.The Sun regrets the errors.

St. Joseph had been named a defendant in the case, but the jury cleared it of any wrongdoing and awarded it court costs.

Midei and Sell released statements through a spokeswoman for Midatlantic, which plans to appeal.

"I've done close to 30,000 procedures on patients and have never been sued until now," said Midei, who said he has never talked to Bargar.

"I was devastated by the verdict, but am happy to have my friends and colleagues who know the truth stand by me," Midei said.

Sell, who performed the operation on Bargar, said, "The most important thing to me is caring for my patients. This man got excellent care for a complicated problem, and we were totally honest with him at every step along the way."

The case underscores potential conflicts arising out of the competition for patients among associations of medical specialists.

The competition for patient referrals is particularly fierce among heart specialists.

Midatlantic has been embroiled in a five-year turf war with the group to whom Bargar's own surgeon belonged, Cardiac Surgery Associates of Towson, which sued Midatlantic in 2001. That case, which arose over a failed merger attempt, has been before the Maryland Court of Appeals for two years.

A cardiac surgeon's livelihood is almost entirely controlled by patient referrals from cardiologists, raising fears that the dependent relationship could lead to "professional extortion."

`More vulnerable'

In 2000, an ethics committee within the Society of Thoracic Surgeons wrote in a position paper that "cardiac surgeons may be more vulnerable to this practice of professional extortion than any other sub-specialty in surgery because of the logistics of referring patients with cardiac disease."

Gerard F. Anderson, director of the Center for Hospital Finance and Management at the Johns Hopkins School of Medicine, noted that, "You essentially have a limited number of patients who need that surgery, so you need to aggressively promote your skills and mostly to your peers, because they're the ones who really hire you [through patient referrals]."

The $5-million verdict was reached Friday after a three-week trial in Baltimore County Circuit Court.

It grants Bargar and his wife Carole $2.25 million in compensatory damages that must be paid by Midei, Sell and Midatlantic and includes a pain and suffering award of $2 million for the patient, who claimed Sell botched his bypass surgery, causing "catastrophic and permanent physical injuries," according to a court filing.

Another $2.75 million in punitive damages was also charged against Midatlantic, a practice of 59 cardiologists and four cardiac surgeons licensed to operate at Union Memorial Hospital and St. Joseph.

`Grateful to God'

In an interview yesterday, Bargar, 67, said he was happy with the decision. "I'm grateful to God that I'm still here," he said.

The case goes back to 2001, when Bargar, who was working as a truck driver, was told he needed to have repeat bypass surgery.

In his suit, Bargar claimed he asked to have his original bypass surgeon, Dr. Peter J. Horneffer of Cardiac Surgery Associates, perform the operation at St. Joseph's, but was told falsely - at the instruction of Midatlantic - that Horneffer was not available and that Sell would do the procedure.

While Bargar was recovering from the operation, his wife learned that Horneffer had been available all along, spotting his name on a list in a hospital hallway and later talking with him, the suit claimed.

Bargar developed complications from the operation and was hospitalized again. His heart was further damaged, and he now lives with pain and weakness that has hurt not only his health, but his relationship with his wife, according to the suit.

"For physicians to do to a patient what the jury in this case concluded they did to Harry Bargar is obscene," said Bargar's attorney, William F. Gately.

Midatlantic spokeswoman Linda Harder said the verdict has "stunned and disappointed" the organization.